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Duress, Deception and the Validity of a Promise David Owens an Invalid

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Duress, Deception and the Validity of a Promise David Owens an Invalid Duress, Deception and the Validity of a Promise David Owens An invalid promise is one whose breach does not wrong the promisee. I describe two different accounts of why duress and deception invalidate promises. According to the fault account duress and deception invalidate a promise just when it was wrong for the promisee to induce the promisor to promise in that way. According to the injury account, duress and deception invalidate a promise just when by inducing the promise in that way the promisee wrongs the promisor. I demonstrate that the injury account is superior. I then argue that in this respect promising is like any exercise of a normative power. I conclude by distinguishing two theories of promissory obligation, a widely held view which I call the information interest theory and an alternative which I call the authority interest theory. I argue that the points established earlier support the authority interest theory over its rival. A highwayman, finding an inadequate amount of money on his victim, forces them to promise to provide more once they are released. Here the victim does make a promise, that is they express an intention to undertake an obligation to furnish the highwayman with more money. Nevertheless, the law and common opinion would agree that the victim is not bound by their promise. Nor would he be bound if he promised to buy a second hand car from a dealer and subsequently discovered that the dealer had tampered with the mileage clock. In these cases duress and deception invalidate the promise. Promissory obligation has long been a central topic in moral and political philosophy and thus the topic of promissory invalidation has also attracted philosophical attention.1 But many have wondered whether there is anything of philosophical interest to be said about how and why duress and deception invalidate. Hume for one alleged that when thinking about such matters we draw distinctions which reflection cannot justify and he uses this as evidence of the conventional nature of promissory obligation (Hume 1740, Bk. 3, Pt. 2, Sect. 5). Other writers from 1 Legal theorists have written extensively on the topic of contractual validity and though I have found these writings extremely helpful and shall refer to several of them, I shall not discuss them directly. This is because legal theorists are concerned with contracts - reciprocal agreements where both parties expect to get something out of the deal - and treat unilateral or gratuitous promises as at best peripheral cases. Their main interest is in the remedies for breach of contract, in how costs should be allocated once a contract has been breached. I focus on the question ‘when does the breach of a promise wrong the promisee?’ and I shall discuss the remedies for breach of promise only in passing. Grotius through Sidgwick down to the present day have found only confusion in this area, inviting us to infer that one can settle when promise is void for duress or misrepresentation only in the context of a particular legal system.2 It would be indeed foolish to suppose that the details of what constitutes, say, a valid marriage contract can be worked out a priori. But moral reasoning might still provide some insight into promissory validity and, in particular, into why duress and deception tend to invalidate promises. And this might cast some light on the nature of promissory obligation as such. At least that is my hope. I shall proceed as follows. In the first section, I focus on a specific notion of invalidation according to which an invalid promise is one breach of which does not wrong the promisee. In the second section, I introduce two accounts of how force and fraud invalidate promises: the fault account and the injury account. Both share the idea that force and fraud invalidate because they are wrongs but they interpret this idea in quite different ways. I argue that the injury account is superior and in the third section, I apply this account to the exercise of other normative powers like giving and consenting. In the final section, I distinguish two different theories of promissory obligation - the familiar information interest theory and the less familiar authority interest theory - and suggest that the truth of the injury account supports the latter. 1. What is invalidation? What is it for a promise to be invalid? My answer is simple: a promise is invalid when the promisor would not wrong the promisee just by breaking their promise. To explain that simple answer, I must separate wronging someone or injuring them on the one hand from doing something wrong or being at fault on the other. For an invalid promise needs to be distinguished from a promise that the promisor is justified in breaking. Wronging someone by breaking a valid promise can be the right thing to do. 2 After considering exactly when promises are invalidated by ‘force or fraud’, Sidgwick concludes that ‘on all these points Common Sense seems doubtful’ (Sidgwick 1874, p. 306). Sidgwick’s scepticism is endorsed by (Atiyah 1981, p. 25). Grotius notes ‘a great variety of opinions’ on these points (Grotius 1625, Bk 2, Ch. 11, Sect, 7). Several writers have maintained that whether an action wrongs someone and whether that action is justified are two quite different questions.3 One might say this because one thought that we are sometimes justified in doing things for which there is no moral justification. But I am envisioning the rather different possibility that the right thing to do even from the moral point of view is to wrong someone, to injure them, perhaps by violating some right of theirs. For example, we are sometimes entitled to damage the property or harm the persons of others and in so doing we normally wrong them. What is the precise significance of this wronging? If the injury here were a legal wrong, the legal consequence would be compensation of some sort. But it is less clear what reaction fits a moral injury, especially where the injury’s infliction is justified. Compensation is often out of place and even where compensation suits, it is as an expression of other more basic reactions.4 I am inclined to think that, in at least some cases, guilt, remorse, apology, requests for forgiveness are appropriate responses on the part of the perpetrator even though what they have done was justified (Marcus 1996, pp. 31-3). Conversely, blame and resentment, as well as forgiveness and offers of reconciliation on the victim’s part are frequently not out of place. I shall support these claims by describing situations (of justified breach of promise) in which such responses are quite common, a fact which places the burden of proof on anyone who thinks them irrational or at least inappropriate. But these scenarios are not meant to settle the matter. What I need both to elucidate the notion of promissory invalidation and to formulate my own theory of it is the idea that whether one wrongs someone by breaking a promise and whether the breach is justified are two different things. Others can make this distinction in their own way without rejecting the rest of what I say.5 3 (Gardner 2005, pp. 54-7) argues that the law of both tort and contract require the idea of a wrong that is nevertheless justified. See also (Thomson 1990, pp. 100-3). 4 For example, offering compensation for breach of promise would often be rather odd. How do you compensate someone for failing to turn up to their wedding? If you do send them a gift in an effort to make it up to them, the gesture will be well received only in so far as the gift is taken to be an expression of some feeling (not just the discharge of a debt.) (Williams 1982, pp. 27-30). There are also cases in which the promisee very much wants the promise to be kept but actually benefits from its breach. This hardly invalidates the promise but it does make compensation inappropriate. 5 Philosophers who try to make this distinction without supposing that justifiable wronging is blameworthy include Raz (2004, pp. 189-93 and 1986, pp. 359-66) and Thomson (1990, Ch. 3). In my view, both Raz and Thomson make too much of compensation. If you fail to turn up to someone’s wedding, attention will focus on whether the happy couple are entitled to resent your absence and not on, for example, whether you should pay them for the wasted place at the wedding breakfast. One is often justified in breaking a promise, for example when some more weighty duty (e.g. a more important promise) turns out to conflict with it in a way which could not have been anticipated when the promise was made. But the fact that one is justified in breaking the promise is perfectly consistent with the fact that one is wronging the promisee, that one is failing to discharge an obligation to them. We often feel guilty about such a breach of promise, apologise for the breach and seek to make it up to the promisee, even while continuing to believe that breaching this promise was, in the circumstances, the right thing to do. 6 And the guilt the wronger feels here is something more than the regret a decent person feels whenever they must cause harm, or allow someone to be harmed: there is an injury, not just a harm. Suppose I have a limited supply of a life-saving drug and must decide who is to live and who is to die.
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